Case II: Concerning Espousals

Applied correction from Woywod’s opening insert: Case II.—The New Code abolishes the fourth degree of blood relationship as an impediment to marriage. The impediment of public honesty arising from valid marriage engagements has likewise been dropped by the Code.

Some time before last Easter John entered into a serious and valid contract of betrothal with a widow named Virginia. Virginia was a third cousin of John, and the sponsalia were contracted on condition that the Church would allow them to marry. Application was made for a dispensation from the impediment of consanguinity in the fourth degree, and the dispensation was obtained. Before the marriage took place, however, the widow died. She left a grown daughter, Rhea, whom John now desires to wed. Will it be necessary to get a dispensation from the impediment of blood relationship, since Rhea is John’s third cousin once removed; and will it be necessary also to get a dispensation from the impediment publicae honestatis, on account of the valid espousals that existed between John and Rhea’s mother, Virginia?

Answer—I. There is no need of a dispensation from an impediment of consanguinity in order that John may marry Rhea. Rhea’s mother was John’s third cousin, or, as the Canon Law puts it, the widow Virginia was related by blood to John in the fourth degree of kinship. The widow’s daughter Rhea is related to John in the fifth degree, touching the fourth, in quinto gradu attingente quartum. In English John and Rhea are called third cousins once removed. In Latin they are called consanguinei in quinto gradu attingente quartum. Now the fourth Council of Lateran, held under Innocent III, A. D. 1215, and the Council of Trent, A. D. 1545, restricted the impediment to marriage arising from blood relationship to the fourth degree of kindred, that is, to third cousins. Any relationship beyond the fourth degree, even though it be mixed with a closer degree, say the second or the third, creates no impediment to marriage. Before the fourth Council of Lateran, the impediment extended to the seventh degree, i. e., to sixth cousins. But as it was very difficult to follow up blood relationship to the seventh degree, the council wisely restricted the impediment to the fourth degree. As Rhea’s mother and John were third cousins, or blood relatives in the fourth degree, it follows that Rhea herself is more distantly related to John than the fourth degree, and therefore needs no dispensation in order to marry John.

II. But when we come to the second question the solution is not so easy. Theologians and canonists of high repute have argued the matter for centuries, but the case is still in court. Are espousals valid, when contracted by two persons between whom a diriment impediment to marriage exists, provided these persons contract the espousals on condition of obtaining a dispensation from the impediment?

Theologians are agreed that, if the impediment be one from which the Church can not or does not dispense, or if there be no sufficient reason for granting a dispensation, the espousals are null and void. Even though the impediment be one from which the Church can and does dispense, and there be a just cause for granting a dispensation, nevertheless if either party to the betrothal contract breaks the engagement before a dispensation is granted, then the espousals are null and void, and a subsequent dispensation produces no effect whatever. On this point also the theologians are in accord. If, after a dispensation has been granted, the parties to a betrothal renew their consent, either expressly or tacitly, v. g., by having the banns of marriage published, in that case the sponsalia are valid and produce their canonical effects. On these points there exists no controversy.

The question which divides the theologians to-day, and has divided them for centuries, is this: Are sponsalia, contracted sub conditione: si dispensetur, by persons between whom a diriment impediment to marriage exists, null and void from the beginning, so that, although neither party to them withdraws consent, still they remain null and void and produce no canonical effect, even after a dispensation to wed has been granted, unless there be a renewal of the engagement, after obtaining the dispensation? Or are such espousals conditionally valid from the moment they are entered into, and do they become absolutely valid on the granting of the dispensation to marry, without any renewal of the espousals? If such sponsalia are invalid from the beginning, then obtenta dispensatione they remain invalid, and create no diriment impediment publicae honestatis, between blood relations in the first degree. If, on the contrary, such espousals are conditionally valid, like all other conditional espousals, then, obtenta dispensatione, they become absolutely valid, and create the diriment impediment publicae honestatis, which renders marriage with one another’s blood relations in the first degree null and void. For when valid espousals have once been contracted, then, although they be broken for just and sufficient cause, still they leave behind them a diriment impediment publicae honestatis, which will invalidate the subsequent marriage of either party with the first degree blood relations of the other. Thus a man who is validly engaged to a woman, can not wed her mother, nor her sister, nor her daughter, even though the original engagement be broken by mutual consent and for sufficient cause. The same is true of the woman with regard to the man’s father, brother and son. Now if we apply what has been said to the case under discussion, we would say that if the sponsalia of John and Virginia, contracted “sub conditione: si dispensetur,” became absolutely valid as soon as the dispensation was granted them to wed, then John can not marry validly any first degree blood relation of Virginia, i. e., neither her mother, nor her sister, nor her daughter Rhea. On the contrary, if the espousals of John and Virginia were invalid when they were contracted, then they remained invalid even after a dispensation to wed had been granted, and there exists no diriment impediment publicae honestatis to John’s marriage with Virginia’s daughter Rhea.

Among the theologians who would permit John and Rhea to marry without procuring a dispensation we find Card. de Luca, Berardi, Lehmkuhl, Santi, Scavini, Gury, Giraldi, and very many others. Among the theologians who maintain that John’s espousals with Virginia were valid, and that therefore there does exist a diriment impediment publicae honestatis, between Virginia’s daughter and John, we find the names of St. Alphonsus, Reiffenstuehl, Ballerini, de Angelis, D’Annibale, Noldin, etc. The first of these two groups of theologians maintains that betrothals entered into between persons subject to an impediment, under the condition: IF THE SUPERIOR SHALL HAVE DISPENSED, are radically null from the beginning, so that even after the dispensation has been obtained, although consent has not been revoked, they persist in their nullity unless consent has been renewed.

In support of their opinion they appeal to the Acta S. Sedis, I, p. 121, where we read: “If these espousals were valid, even though contracted sub conditione, then they would be binding from the very moment they were contracted. The condition attached to them adds nothing new, except the note of time, which is made dependent on the dispensation. Supposing the dispensation to have been granted, one party to the sponsalia could force the other party to contract marriage in case this second party should be unwilling to do so, and this he could do, not by virtue of the dispensation, but by virtue of the promise to marry originally made. The source of the obligation to marry would thus have to be traced back to the time that the espousals, even though conditional, were contracted. But, at the time when the espousals were contracted, the contracting parties were not capable of making such a contract, being disabled by the diriment impediment.” From which it follows that a contract that is null and void when made, can not be rendered valid later on, except by renewal of the contract after the disability has been removed.

Again, the Congregation of the Council has repeatedly declared espousals, such as we are discussing, to be null and void in law and of no effect, v. g., January 26, 1709; December 12, 1733; May 2, 1857; November 27, 1858. On October 2, 1857, the same Congregation declared that these espousals are null and void, even though there was question of a blood relative having been violated under promise of marriage and to whom a dispensation was promised afterward. A renewal of the consent was necessary, the Congregation declared, even after the dispensation had been granted. and in the mean time both parties were canonically free to contract other espousals. Finally, according to these theologians, it has always been the steadfast practise of the Congregation of the Council to declare such espousals null and void.

But now listen to the theologians of the opposite side. The reasons which they advance in support of the validity of these conditional espousals are even more cogent than those of their opponents,

They contend that the condition, si dispensetur, annexed to the espousals is possible of fulfilment, since the Church can and does dispense in like cases, the condition is just and legitimate, since there is a sufficient reason for asking for a dispensation and a just cause for granting it. The subject matter of the conditional sponsal contract is perfectly legitimate, namely, marriage upon obtaining a dispensation. ‘A contract, made on a condition that is just and legitimate, becomes valid and binding as soon as the condition is fulfilled. Again, in the opinion of these theologians, no proof can. be drawn from the answers of the Congregation of the Council, because, in the cases reviewed by the Congregation, the dispensation had not yet been fulminated and one of the parties had withdrawn consent, and therefore the sponsal contract remained null and void, even after a dispensation had been obtained. The cases reviewed by the Congregation were therefore altogether different from ours.

The opinions of these two groups of theologians are solidly probable. Card. Gasparri says of them: “This latter opinion (maintaining the validity of the espousals under discussion here) is more probable, but we think that the first also enjoys true and certain probability, at least extrinsically” (De Sponsal., p. 52).

Dr. De Becker, professor at the University of Louvain, thinks that the opinion denying the validity of the espousals should be followed in practise. He says: “This last opinion seems to be preferred, since it could scarcely be denied that it has at least its own probability; hence the effects of valid espousals should not be insisted upon” (De Sponsal., p. 8).

In view of what has been said it would be difficult indeed to determine whether John and Rhea need a dispensation super impedimento publicae honestatis to wed, or not. But we may reach a satisfactory solution by another process of reasoning. St. Alphonsus says, and in fact it is a common axiom in Canon Law, that whenever an opinion is probable in law (probabilitate juris) that there does not exist any ecclesiastical impediment to a marriage, then the Church has ever been presumed, even from the earliest times, to sanction such a marriage and to remove any impediment to it, if perchance any such should exist. According to the holy doctor, this is the common opinion of theologians and canonists, and he commends it as a safe rule to follow. There can be no question here of administering a Sacrament according to a probable opinion. In this case the Church removes the probable impediment, in case it does actually exist, and thus the Sacrament is administered with moral certainty as to its validity. Therefore John and Rhea may marry validly and licitly, without procuring a dispensation super impedimento publicae honestatis.